Shashi Tharoor, the Congress MP from Thiruvananthapuram, has apparently changed his position on the Sabarimala question. In an article in The Print on Saturday, the cosmopolitan face of the Congress transformed into a Knight Templar. Quoting “informal surveys”, he said an overwhelming majority of Hindus in Kerala are against the Supreme Court’s judgement allowing women of menstruating age to enter the Ayyappa temple. He essentially sought to find the middle ground between “abstract notions of Constitutional principles” and the belief of the majority.

In the article, Tharoor accuses both the Bharatiya Janata Party and Kerala’s ruling Communist Party of India (Marxist) of hypocrisy. What he does not talk about is his own hypocrisy, clearly driven by the desire to save his electoral base in Kerala which he feels is being burnt to ashes by a regressive movement. To his credit, he is a loyal Congressman, following the position articulated by its president Rahul Gandhi that while the party stands for gender equality, it will respect the Kerala Congress unit’s view on religious sentiments.

It is shocking to see an MP pandering to majoritarian impulses and advocating the negation of cardinal constitutional principles, even if it is just for political survival. Tharoor is essentially mimicking the adherents of Hindutva. What he does not understand, or deliberately ignores, is the effect such a position will have on a gamut of issues, most importantly the Babri Masjid dispute. This, in turn, strikes at the heart of the concept of secular republic and the Indian Constitution’s promise of protecting minorities.

Majoritarian view

The primary problem with Tharoor’s position is not that he wants the courts to recognise religious freedom. It is true, as Tharoor says, that a court dictating the mechanics of a belief system is problematic. But he does not stop there. The way he makes this point is a blatant defence of majoritarianism.

The constitutional guarantee of equality is not an abstract principle. It is one of the cardinal rules on which constitutional democracy rests. Take away this protection of equality and democracy becomes the writ of the majority. Equality and inequality are lived realities that profoundly affect people’s lives and determine whether a life could be led in a dignified manner. It is on this pillar of dignity that the Supreme Court’s judgement allowing women of menstruating age to enter Sabarimala is sustained.

The element of equality in religion is enforced not by ascertaining what the majority of the believers want, but by ensuring that even a minority within the faith is not excluded arbitrarily. The equality principle should penetrate religious freedom as well. There is a fundamental difference between the private space where faith operates and the public space where religion functions. The majority might prefer a wholly “pernicious and oppressive” practice that humiliates a section within but this cannot be sanctioned by invoking the religious rights of the majority as it would ride roughshod over equality. This is exactly what Tharoor conveys when he says constitutional principles should pass the test of societal acceptance. A liberal constitution such as India’s places individual liberty over collective preferences. To reverse this position is to commit a constitutional sin.

While one can prefer a social revolution over a court verdict to introduce reforms and enforce equality, to say nobody has any business telling believers how they should go about practising their religion is subjecting the equality clause to the wishes of the majority.

Once the highest court in the land issues a directive, it is vital for the state to enforce this writ rather than find ingenious ways to undermine it. This is also a constitutional dictate. Shockingly, Tharoor suggests that the Centre should use this opportunity to curtail Supreme Court’s review powers on “issues of cultural autonomy and religious practices”. This runs against the grain of the principle of transformative constitutionalism and non-retrogression of rights that took the court decades to evolve. In one shot, Tharoor, by suggesting Parliament curtail judicial review in matters of religion, is pulling the country backwards by decades.

Minority rights

Imagine what the outcome would be if Tharoor’s arguments were applied elsewhere, especially in the Ayodhya case.

Will Tharoor accept it if people cite “informal surveys” showing the majority in the country want a Ram temple on the spot where the Babri Masjid stood before it was demolished in 1992? Will he say courts should accept the majoritarian argument based on faith and not on fact that Ram was born on that very spot and allow the construction of the temple?

What message would such a decision send to the minorities in India? It would be an abdication of constitutional responsibility that would turn them into second-class citizens. The same applies to Sabarimala. A minority is not just a group outside the majority. It could be a minority within the majority to which the idea of equality applies. This is why shooting from the shoulders of women who are against the Supreme Court’s judgement does not hold.

While it is acceptable to say reforms should emerge from popular movements, this argument cannot be used to undermine the judiciary once it makes its decisions. By flipping his position based on popular demand, Tharoor has shown he is more an instinctive politician than an instinctive liberal. For an instinctive liberal will not sacrifice equality at the altar of electoral politics.